Dyktynski v BHP Titanium Minerals - [2002] NSWSC 1112

CITATION: Dyktynski v BHP Titanium Minerals [2002] NSWSC 1112

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 13487 of 2001

HEARING DATE(S): 1 November 2002

JUDGMENT DATE: 22 November 2002

PARTIES :

Samuel Scott Dyktynski (Plaintiff)
v
BHP Titanium Minerals Pty Ltd (First Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Review Panel

LOWER COURT
FILE NUMBER(S) : 91615 of 2001

LOWER COURT
JUDICIAL OFFICER : Robert James Charles Benjamin and John L Sharpe - Costs Review Panel Members

COUNSEL : Mr B McManamey (Plaintiff)
Mr P Perry/E Wood (First Defendant)

SOLICITORS: Stacks - The Law Firm (Plaintiff)
Sparke Helmore (First Defendant)

CATCHWORDS: Order for costs - agreement between plaintiff and client that he will not have to pay any costs - distinction between such a case and a situation where a party is indemnified against his liability to pay costs - operation of s 208H.

LEGISLATION CITED: Legal Practitioners Act 1987, s 207, s 208H,
s 208L.
Workplace Injury Management and Workers Compensation Act 1998, s 110, s 116.

CASES CITED: Baker & Anor v Kearney [2002] NSWSC 746.
Harold v Smith 5H&N 381.
Howard & Ors v Mechtler & Ors [2000] NSWSC
455.
McCallum v Ifield (1969) 2 NSWR 329.
New Pinnacle Group Silver Mining Co v Luhrig Coal & Ore Dressing Appliances Co (1902) 2 SR (NSW) 50.
Rickard Constructions v Doyle [2002] NSWSC 882.

DECISION: See Paragraphs 27-28.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 22 November 2002

13487 of 2001 Samuel Scott Dyktynski v BHP Titanium Minerals Pty Ltd
JUDGMENT

1 Master: The plaintiff brings these proceedings by way of appeal pursuant to s 208L of the Legal Practitioners Act 1987 (the Act). The grounds of appeal may be found in an Amended Summons.

2 Section 208L affords a narrow avenue of appeal. It is restricted to an error of law. The plaintiff bears the onus of demonstrating a basis for the disturbing of the decision that is under appeal.

3 The plaintiff brought proceedings in the Compensation Court. He recovered an award and an order for costs was made in his favour. There was a delay in payment of the costs. A dispute then arose concerning the payment of interest on the costs. Interest may be payable under s 110 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act).

4 An application to resolve the dispute was made by Notice of Motion in the Compensation Court. The application was unsuccessful. An appeal was then brought to the Court of Appeal. The appeal was successful. An order for costs was made in favour of the plaintiff. It was an order that related to both the costs of the Notice of Motion in the Compensation Court and the costs of the appeal.

5 An application was made for an assessment of those costs. The application was referred to a Costs Assessor (Mr Dwyer). A bill of costs was filed with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1112
Decision Date: 22 November 2002

CaseChat Overview and Summary

The case of Dyktynski v BHP Titanium Minerals involved the plaintiff, Dyktynski, who brought an action against the defendant, BHP Titanium Minerals. The dispute centred on whether the plaintiff was entitled to costs under an agreement made between him and his former legal representatives, whereby it was agreed that Dyktynski would not be required to pay any costs. The case was heard in the Supreme Court of New South Wales. The key legal issue before the court was whether the agreement between Dyktynski and his former legal representatives constituted an agreement to indemnify him against his liability to pay costs, and thus whether section 208H of the Supreme Court Act 1970 applied to deny him costs.

The court examined the nature of the agreement between Dyktynski and his former legal representatives, distinguishing it from a situation where a party is indemnified against his liability to pay costs. The court held that the agreement between Dyktynski and his former legal representatives did not amount to an indemnity agreement, but rather was a direct agreement between Dyktynski and the legal representatives that Dyktynski would not be required to pay any costs. The court emphasised that section 208H only applies to agreements to indemnify a party against his liability to pay costs, and that the agreement in this case was not of that nature. As a result, the court found that Dyktynski was entitled to costs under the agreement.

The court's reasoning was based on the plain language of section 208H and the distinction between an agreement to indemnify a party against his liability to pay costs and an agreement between a party and his legal representatives that the party will not be required to pay any costs. The court held that the agreement in this case was not an indemnity agreement, and thus section 208H did not apply to deny Dyktynski his entitlement to costs. The court also noted that the agreement was made in the context of legal representation and was not intended to indemnify Dyktynski against his liability to pay costs.

In conclusion, the court found in favour of Dyktynski and held that he was entitled to costs under the agreement with his former legal representatives. The court held that the agreement was not an indemnity agreement and that section 208H did not apply to deny Dyktynski his entitlement to costs. The court's decision provides guidance on the distinction between an agreement to indemnify a party against his liability to pay costs and an agreement between a party and his legal representatives that the party will not be required to pay any costs.

Orders